Health Bill - Standing Committee E

[Mr. Eric Illsley in the Chair]

Health Bill

Clause 6 - No-smoking signs

Question proposed [this day], That the clause stand part of the Bill.

4.5 pm

Question again proposed.

Andrew Murrison: What a pleasure it is to see you, Mr. Illsley. Before lunch, I was in the middle of summing up my remarks on clause 6, which has to do with signage. I was saying how much sense there was in proposals that, rather than having no-smoking signs, we should have smoking signs. Given the direction in which we are going, in the fullness of time smoking will be the exception, having once, sadly, been the rule. That being so, it will be better to have smoking signs where that exceptional activity is permitted, rather than no-smoking signs, which—we would hope—will be largely redundant.
Of course, there would be cost implications, although signs are relatively cheap. I recall the observation of my hon. Friend the Member for Reigate (Mr. Blunt) that there is the possibility that in creating this legislation we are assisting not only lawyers but signmakers. If they have any sense, they will be watching our deliberations very closely in the expectation of producing lots of signs in the not-too-distant future. That is not, in itself, a bad thing, but it will be a good thing to reduce the burden on those who operate premises by minimising the amount of signage that is required. There are other good reasons for minimising signage, including the fact that signs tend to clutter a place. We are all aware of highway clutter—in my case, I pass signs about this, that or the other every five minutes all the way down to the west country. I know that one or two of my hon. Friends have been exercised by that, especially the hon. Member for Tiverton and Honiton (Angela Browning), who is particularly concerned about roadside clutter.
However, it is a more general point. We seem to be erecting more and more signs wherever we go, so surely it is a good thing to minimise that, especially in sensitive areas, which places open to the public often are. I am thinking particularly of historic and listed buildings. It would be good to have as few ugly signs intruding on our enjoyment of those places as possible.
The trouble with signs is that if we institute a new range, that will lessen the significance of those that we have already. At the moment, we have helpful signs telling us where to go and so on, safety signs, exit signs, and signs telling us what to do to maximise our chances of having an incident-free visit. We are at risk of going into information overload. By having smoking rather than no-smoking signs, we will improve signage in general, ensure that we do not dilute the existing messages, particularly the important ones relating to health and safety, and reduce the regulatory burden on businesses that will have to display signs and, importantly, police them.
The Bill places an obligation on individuals to ensure that there is adequate signage. If we can keep that as simple as possible, that has to be a good thing. Later in our consideration of the Bill, remarks on keeping things simple, made by the Local Government Association, will probably be mentioned. Indeed, the Liberal Democrats have tabled an amendment that is taken, pretty well verbatim—correction, verbatim—from a suggestion made in an LGA paper, which was sent to all members of the Committee, stating that it was worried about the complexity of some of the arrangements. By keeping matters as simple as possible we will at least satisfy the LGA and, I suspect, many others.
I hope that the Minister listened carefully to the helpful suggestion made by my right hon. Friend the Member for North-West Hampshire (Sir George Young), which is sound good sense. Let us please have smoking signs rather than non-smoking signs.

Caroline Flint: Before I enter into discussions about signage—whether signs should say smoking or non-smoking, for example—I want to repeat that I am considering the issue of fines, based on consultation.
I sought advice during the break about who would be liable in respect of the offence of not displaying signs and so on, a matter which was raised by the hon. Member for Northavon (Steve Webb). I was pleased to have had an opportunity to think about that matter and to discuss it with officials. We would not necessarily target ordinary bar staff, but people who have a position of responsibility in a bar; that could be the licensee, the manager or someone who is given additional responsibilities over and above serving in the bar or cleaning it.
I have some sympathy with the suggestion made by the right hon. Member for North-West Hampshire about signs. I asked questions about that issue when we drew up and received responses to the consultation document in the summer and when we discussed the drafting of the Bill. In an ideal world, the presumption would be that everywhere was non-smoking unless there was a sign stating that smoking was allowed. It would be nice to believe that that would happen, as it would be the easiest option. Unfortunately, we do not live in that ideal world.
As part of my deliberations, I discussed what happens in other countries and as far as I am aware—I stand to be corrected—the countries that have introduced restrictions, even those such as Ireland and  some states in America that have a total ban, still make provision for the focus to be on non-smoking, rather than smoking, signs. That is partly because of the defence issue—people should know that they are entering a non-smoking environment. We are at the start of a legislative process in defining, in law, those places that should be non-smoking. In the debate on this clause we are discussing the defences available to people to argue that they were unaware that they were in a non-smoking or smoke-free establishment.

Crispin Blunt: The purpose of a Committee stage is to reflect on the Bill. Having listened to the debate, I think that we are in danger of getting the proposal wrong. Surely, the duty should be on the smoker to establish that smoking is permitted. Will the entire country be splattered with signs pointing out that it is not permitted? The responsibility should lie with the smoker. There should be no defence for a smoker who lights up in a place where smoking is not permitted, because smokers should take care to establish that smoking is allowed before they light up.

Caroline Flint: I understand what the hon. Gentleman says, but he should reflect on the fact that we are legislating for the first time to make it an offence, perhaps with a fixed penalty notice, for a person to smoke in a non-smoking environment. There are some real problems with people being able to say that they were not aware that it was a non-smoking establishment. As for splattering the country with signs, we are looking for a relatively light touch.
I take on board what the hon. Member for Westbury (Dr. Murrison) said about listed buildings and so on, and the fact that we should be sensitive about signage. We should also be sensitive to the fact that many of the establishments that now operate voluntary no-smoking policies already have no-smoking or smoke-free signs; we want to be mindful of that and how any new system of signage builds on or links with it. We certainly are not looking to overburden establishments with no-smoking signs. As I said, we have a record of what other countries have done. Some of them have restrictions and have since gone for a total ban. Indeed, Ireland has gone for a total ban, but it still believes that is it right to have no-smoking signs.
The other aspect is the message that signage sends out. It is quite positive that adults and young people should see no-smoking signs in places where they are active, or visiting or working, rather than seeing smoking signs all over the place. The no-smoking sign sends out a visible message that is clearly understood. If we were to move to smoking signs, however, the question is where they should be placed. We have been speaking of places where people will be able to smoke. For instance, should we have signs outside every pub saying that you can smoke outside but not inside?
All sorts of issues will be raised if we clutter with signs those areas where people cannot smoke. I would ask hon. Members to pause for thought if they were thinking of moving to a regime of smoking signs, as a  huge number of places would be cluttered with signs. If we did not have no-smoking signs, the reverse would be to have smoking signs.

George Young: The Minister is making a good case for clause 6, as it is at the point of inception of a new regime and the creation of the criminal offence of smoking in a public place. I am minded to be persuaded by her argument. My concern is that if, in a few years’ time, we have successfully changed the climate and non-smoking becomes the norm, we will need primary legislation to remove clause 6. If we do make substantial progress, is there a better way of dealing with clause 6 than having to make fresh primary legislation?

Caroline Flint: I understand the point that the right hon. Gentleman raises. However, I am sure that future Governments will be able to make time to deal with such issues through primary legislation. We have already said that we intend to monitor the legislation from day one and to review it within three years. If it was thought that we could move to an environment where smoke-free or no-smoking signs were not necessary, I am sure that an opportunity would present itself.
A number of other countries have extensive restrictions and bans in place. For example, although California has a smoking prevalence of 15 per cent., it still has no-smoking signs for establishments that are smoke-free. Such signs will have a role as the legislation comes into effect and for the foreseeable future.

Andrew Murrison: Is the Minister seriously suggesting that she will review the issue after a period to be defined and that she might then be minded to change the signage from “No Smoking” to “Smoking”? That is extraordinary.

Caroline Flint: No.

Andrew Murrison: Well, that is the implication of her remarks. Why is she talking about reviewing matters? What purpose will the review have?

Caroline Flint: No, I said that for the reasons that I outlined, we should have a presumption in favour of no-smoking signs, rather than signs that define smoking areas, as has been suggested. I have outlined the reasons why and, as with everything, we shall have to see how the legislation comes into force. However, for the foreseeable future—to be honest, that is quite a long time—there will still be a need for no-smoking signs. That has been the experience in countries that have legislated to restrict or ban smoking in all public places.
I am certainly not suggesting that we expect to change this around; we want to take a light-touch approach to these signs and to work with the grain of existing measures, given that several establishments have already voluntarily become smoke-free or have smoking restrictions. We also want to take into account what is appropriate in different types of building and the different language requirements in England and Wales.
Signage is important for another reason. London is a major tourist attraction, and it is important to make clear to tourists what the laws of the land are and how they should be applied.

Andrew Murrison: The Minister’s last point is reasonable, but her argument about signage might be driven by a degree of expediency, if I may say so. I thought that the Bill was all about not smoking and I can think of no better way of getting that message across than saying that there will be no smoking unless an area has a notice saying, “Smoking”. That is a clear public health message, and I wonder whether we are having no-smoking rather than smoking signs because the Cabinet and Ministers have difficulty with a ban on smoking, which will be unpopular with some sectors of the community.
I ask the Minister to give the matter further thought, because my right hon. Friend the Member for North-West Hampshire has made a sensible point. The more I think about it, the more I feel that having smoking rather than no-smoking signs would send a firm public health message, because there would be a ban on smoking unless it were explicitly stated that one may smoke in an area.

Caroline Flint: I think that the hon. Gentleman is becoming rather silly, if I may say so. Not having signage could result in enforcement difficulties in premises that have to be smoke-free under the law. It would be nice to believe that we could pass a law in this place and that everybody out there would simply be aware of it and carry it round with them, but we are talking about a real shift from voluntary restrictions and bans to restrictions and bans that are enshrined in legislation. If somebody does not abide by that law, they will commit an offence, and I am thinking particularly of members of the public who go into a place and start to smoke a cigarette.
However much I might like to believe that we will one day live in a world in which nobody smokes—we would all hope for that, but it is a long way off—an individual has the right to be warned that they might be committing an offence. All the countries that have sought to restrict or ban smoking have felt that it is part and parcel of good compliance and enforcement to alert individuals as to the status of the establishment that they entering to give them a reasonable opportunity not to commit an offence under the law. That is important. The signage that we will discuss in regulations should not be over-burdensome. It should not spoil buildings. But we should also recognise the need to have those places that are smoke-free defined as such.
In many respects, as a firm message of health, I personally would rather see more signs saying “No smoking” than be confronted by signs saying “Smoking allowed”. I hope that hon. Members will  support the clause. There are certain issues relating to the fines that I will take away to think about. I will come back to the Committee on them in due course.

Question put and agreed to.

Clause 6 ordered to stand part of the Bill.

Steve Webb: On a point of order, Lady Winterton. I do not want to pre-empt what you are about to say, but you will be aware that we are now encountering a series of clauses to which no amendments have been tabled. There was some uncertainty earlier about the procedure. May I, through you, encourage the Minister to initiate each of the debates with some words on the clause stand part issue? It would make our proceedings more efficient if we could avoid uncertainty about who kicks off.

Eric Illsley: I am grateful for that point of order. I can only call those who rise to try to catch my eye. I am sure that the Minister will have heard that request, but I am bound by procedure.

Clause 7 - Offence of smoking in smoke-free place

Question proposed, That the clause stand part of the Bill.

George Young: It is a pleasure to be of service to the Liberal Democrats to ensure that there is a debate on clause stand part. Clause 7 introduces the offence of smoking in a smoke-free place. I welcome that. The Minister said in an earlier debate that she did not envisage a raft of prosecutions. I hope that she is right. I hope that this will be self-enforcing. But it would be helpful if she could tell us a little about the experience overseas where this offence has been created. Has there been a raft of prosecutions or has it on the whole been self-enforcing?
It might also help if the Minister would tell us what the experience has been in this country where there has been an offence of smoking in a smoke-free place, such as on public transport. Has this been self-enforcing or have there been problems in enforcing it? I seem to remember a few years ago when Connex trains made the whole of its fleet smoke-free that a number of people, none the less, insisted on smoking. How was that resolved? Were there prosecutions?
Finally, in subsection (3) there is a defence for a person charged with an offence under subsection (2). It would be helpful to know whether that defence is compatible with the defences that exist in those cases where it is already an offence to smoke, for example on the train. In other words, is there some case law that underpins subsections (3) and (4) based on the experience in this country or has the Department branched out and created what in its view is a defence, which may or may not be the same as the defences that can currently be exercised by those who smoke on an aircraft or a train?
I hope that this has enabled the Liberal Democrats to assemble some coherent thoughts on clause stand part. I welcome the clause. It is a step in the right  direction but it would be helpful to have some reassurance that this will not cause enormous difficulties in the way that it is enforced.
Dr. Murrisonrose—
Stephen Williams (Bristol, West) (LD) rose—

Eric Illsley: I call Dr. Murrison.

Andrew Murrison: I was rather hoping to heighten the Liberal Democrats’ discomfiture by coming in at the end to give them more time to marshal their thoughts—a need evidenced by their cunning point of order. Self-enforcement is very important. I hope that the Minister will tell us to what extent she believes the measure will be self-enforcing. The Local Government Association is certainly concerned. It is greatly exercised by the question of who will deal with enforcement in relation to the offences under the Act. Its briefing, which I hope all members of the Committee have read and inwardly digested, states that it hopes—I think it expects—that the measure will be largely self-enforcing, and that it therefore hopes that the burden on its members will be minimised. However, we are not sure about that, and the best litmus test will be what happens in other countries, to which the Minister referred extensively in her earlier remarks.
It would be useful to know which countries the Minister has benchmarked us with, and particularly—I suspect that we shall deal with this on later clauses—what the cost was. We expect her to be able to tell us at some point where the money will come from. Given the likelihood of increases in council tax, I hope that she will tell us that the money will be found from pockets other than those of our hard-pressed constituents. We look forward to hearing news about that, perhaps under later clauses, but some remarks at this juncture about self-enforcement, to assuage the concerns of the Local Government Association, would be most welcome.

Eric Illsley: Mr. Williams, you were pipped at the post a minute ago, but I have pleasure in calling you now.

Stephen Williams: Thank you, Lady Winterton.
I, too, want to discuss subsection (3). I wonder what the defences might be. Perhaps the Minister could expand on the topic. I imagine that not seeing the signs would not be accepted, but perhaps someone might say, by way of a defence, if the matter went as far as court, or if they were challenged by an enforcement officer or someone else, “I was in a pub with which I was not familiar and I did not see anyone eating.”
I know that the big thrust of the Bill is to distinguish between pubs where someone can have a meal and those where they cannot. However, if, for example, I went on holiday to Cheshire, and went into one of the splendid establishments in Congleton, I should not necessarily know whether it had a menu or offered food. At this time in the afternoon, one would not normally expect to see anyone having a meal in any  pub in the country. If someone lit up next to me, I should not necessarily have the confidence to say, “Do you know it is illegal to smoke in this pub?” unless I had checked for the right signs in the right places or asked the landlord whether there was a menu for evening or lunchtime food to satisfy myself that I was in a pub where, even though meals were not being served at the time, I could challenge the person and say, “Please put your cigarette out. You are breaking the law.”
Self-enforcement has been mentioned a couple of times. Surely self-enforcement or self-policing of the Bill would be much easier with a total ban in all public houses, so that a non-smoker would have the confidence to challenge anyone they saw smoking and tell them that they were breaking the law, thus putting social pressure on them. Equally, things would work the other way round. There might be small-scale smoking tourism. In Bristol, people might go from one ward where all the pubs had a smoking ban to a pub where they might think smoking continued to be allowed. How would a smoker be able to light up with confidence? A clear demarcation would be easier.
Subsection (5) refers to a fine to be set by the Secretary of State in future regulations. What is the current thinking on that? What sort of fine for smoking in a public place might one typically expect to be offered on a fixed penalty notice?

Caroline Flint: To deal with the last point first, as I said in an earlier debate, we are considering a fine of £50 for someone who enters a smoke-free establishment and is issued with a fixed penalty notice for lighting up. We decided on that sum because the next level of fine is £80, which, as we discussed with our Home Office colleagues, is the level of fine for situations in which individuals cause harassment, distress or upset. We thought that that might not be appropriate in this instance.

Stephen Williams: I thank the Minister for that clarification about the sum. Presumably that would for a first offence. Is it intended that a record of such fines will be kept? I admit that I am not sure of the normal legal practice with fixed penalty notices, but if someone were to go to another pub a few weeks later and light up again, would they get the same fixed penalty, or will there be a sliding scale?

Caroline Flint: At this stage, we are talking about a set fixed penalty.
I shall say a little more about prosecutions in other jurisdictions. On the point made by the right hon. Member for North-West Hampshire, I understand—I do not have the figures on me—that there have been few prosecutions for people lighting up in smoke-free areas on trains and so on. When trains, tubes and buses became smoke-free, some people decided to ignore that move; what contributed to the success of the move in the medium and long term was the fact that relevant staff took up those issues, and the will of passengers who would not tolerate it. That has worked pretty well.

Andrew Murrison: The Minister is generous in giving way. To what extent will enforcement officers have discretion with fixed penalty notices? There is a great barrage of defences written into the Bill—probably correctly so—that a person who has lit up could probably marshal, if they had the wit to do so, and fire at the enforcement officer, who will, presumably, be busily writing out the enforcement notice. To what extent will an enforcement officer be able to use his or her discretion before pinning an enforcement notice on the smoker?

Caroline Flint: Obviously, an enforcement officer has to assess a situation at any given time in relation to the circumstances. For someone not to accept a fixed penalty notice, they would have to make their case in court. I expect that, as with fixed penalty notices for other matters, people will opt for fixed penalty notices when they know that they have been caught red-handed. Clearly, there has to be a defence in law.
We discussed some examples in an earlier sitting, at which the hon. Member for Bristol, West (Stephen Williams) was not present. One example is a situation in which a person goes into an establishment in which the signage is not apparent and unwittingly lights up just as a local enforcement officer happens to be entering the establishment. There are lots of possible scenarios. The defence is meant to be a safeguard, but, as I said, that is why signage is important, so that people do not light up and smoke when they should not and so that they realise that the place that they are entering is smoke-free.
I was asked about the number of fines and prosecutions. I understand that in Ireland there were 28 court prosecutions before the end of May 2005, none of which were prosecutions of a smoker alone. They were all of owners who allowed smoking, or of owners and smokers where smoking occurred. Therefore, there have been few prosecutions given the extensiveness of the legislation, but there have been examples in which the enforcement authorities thought it right to take cases forward. Such cases have very much been focused on owners who allow smoking and have been about their responsibilities to uphold the law.

Crispin Blunt: Will the Minister consider this point? I hope that there will be few prosecutions, but it would be extremely unfortunate if the clause gave an effective defence to people who say, “I simply didn’t see the sign; I didn’t know,” and the few prosecutions that then occurred began to establish a whole series of causes that people could use as a defence. If, as I suggested in the earlier debate, the duty was on the smoker to establish the defence, it would mean that in the few prosecutions that were brought there would be a much greater certainty of no successful defence being able to be brought under the clause. The public health message would therefore be put over much more clearly. However, if there are a few unsuccessful prosecutions because of the defence offered by the clause, we might find that there is a problem.

Caroline Flint: As I have said, I understand that that has not been a problem elsewhere—Ireland is a good example. The defence for someone charged with smoking in a non-smoking area is that he has
“to show that he did not know, and could not reasonably have been expected to know, that it was a smoke-free place.”
If a defendant wishes to rely on that defence, they must provide the evidence that supports it. For example, such a defence could arise if no-smoking signs had been removed or obscured. Another aspect concerns the reaction of a person who has started smoking in a smoke-free place to being asked to stop smoking by the proprietor or the landlord. There are different aspects related to any individual case that might arise.
It is difficult to imagine all the scenarios that might arise. However, there has to be a defence in law for individuals, as well as the scope for prosecution. I accept that often there is a fine balance to be established, but that is why we have the law and the recourse to the decision of the courts.
Fixed penalty notices have been a feature of our environment in recent times, because they are a speedier way for someone to acknowledge what they have done, and do not require going to court. They have worked very well in a number of circumstances. In some respects, they are a short, sharp shock for individuals, particularly in circumstances in which the game is up, and they know that that is the case. That is the way in which we should proceed.
The level of enforcement is likely to be light. There will be issues in the early days of the legislation as it comes into effect and as the regulations come into force. We need to discuss those issues with local authorities and with those who will be charged with enforcement. That is one of the reasons why we are engaged in discussions with them about enforcement and why we have been engaged in discussions with the Office of the Deputy Prime Minister about the costs of enforcement and our Department funding that.
As I said before, based on the voluntary situation at the moment, and on what we know of other countries that have introduced legislation—the most recent of those being Ireland—we do not believe that there will be a huge number of fines and prosecutions. However, my right hon. Friend the Secretary of State has identified that as one of the issues that that we will need to monitor from day one, to see how the regulations are used in practice, what the implications are for enforcement, whether the legislation is clear, the level of prosecutions, and the level of self-enforcement.
There are plenty of examples of offences—such as dropping litter, or using a mobile phone while driving a car—for which we pass laws because we think that that is the right thing to do. We recognise that there has to be an offence and therefore a defence in law, but we also recognise that—with those two examples in particular—we expect the public to support the law and to do their bit to enforce it by self-enforcement and in the context of their friends and families. I hope that hon. Members will support the clause.

Question put and agreed to.

Clause 7 ordered to stand part of the Bill.

Clause 8 - Fixed penalties for offence of smoking in smoke-free place

Question proposed, That the clause stand part of the Bill.

Andrew Murrison: Clause 8 continues the theme of offences and deals with fixed penalties for the offence of smoking in smoke-free places. The clause is closely aligned to schedule 1. I have a series of points and questions that I should like to put to the Minister, some of which have already been touched on. The clauses in this part of the Bill seem to merge into one another. If I am repetitive, I apologise. That is probably indicative of my discomfort with some of the remarks made.
I want to know more about enforcement officers. I am a little concerned about them, not least about their welfare. The Local Government Association, which represents the organisations that will employ those officers, is also concerned about that. We have discussed public health, and it can mean all sorts of things. I am very worried about the safety of enforcement officers, and I hope that the Minister will address that. They will put themselves in the line of fire in the course of the work that they will be expected to do. They may find themselves in situations in which one could expect tempers to be a little raw and in which one might expect trouble. I am not sure whether enforcement officers will much welcome the new duties that will be placed on them by the Bill, but we shall see.
It will be interesting to hear how the Minister expects fixed penalty notices to work. Does she expect teams of enforcement officers to circulate around licensed premises, seeking out smokers and licensees who are flouting the law, and handing out penalty notices? Does she expect existing enforcement officers—mainly environmental health officers—to perform those duties as an extra bolt-on job? Alternatively, will the enforcement officers rely merely on tip-offs from the public? It would be useful to get an idea of the scale of the operation. No doubt she will want to refer to the experience of other countries.
We have not entirely dealt with the problem of repeat offenders. Does it matter how many fixed penalty notices a person clocks up, or will it be £50 a time? I suspect that there will be some who regard that as a risk worth taking, especially if they enjoy a cigarette and are minded to pay £50, which, in some people’s minds, especially in wealthy parts of London, is not a great deal. They may spend considerably more than that on a night out, and may habitually flout the law and be quite happy to pay £50. They may even keep that amount in their back pockets, ready to pay the fine if an enforcement officer chances upon them, which will not happen very often, unless the Minister intends to embark on a wholesale recruitment campaign.
We are worried about training for enforcement officers. The LGA is much exercised about how that will take place. It is a complex new area and a  departure from the usual work of environmental health officers. The LGA points out that fixed penalty notices are not part of the weft and warp of the work of environmental health officers, and that they will require considerable training before they are expected to go forth and pin enforcement notices on people. It will be interesting to know what thought the Minister has given to that and what cost will be involved in that training. I seek assurance that that money will be found centrally and will not be an added burden on our hard-pressed council tax payers who, in my area and in the areas represented by my right hon. and hon. Friends, already face substantial hikes in the not too distant future. Such things, of course, mean that the charges go up and it is something over which poor old councils have no control.
I hope that the Minister has recognised the need to train environmental health officers and others who are expected to enforce the provision, that she has costed it and that she is prepared to find a sum of money from the centre that will allow councils or whoever to do the necessary training. It would also be useful to know a little more about how individuals will physically pay the penalty. We remember with some affection the Prime Minister’s notion that fixed penalty notices could be discharged by marching people off to a hole in a wall, where they would put their plastic in, take out fifty quid and give it to the constable. That did not last very long. I imagine that the Minister does not have that scheme in mind, but it will be useful to know what she does.
It will also be useful to know about identification. As I understand it, enforcement officers will march into establishments, spot someone smoking in a corner and say, “You’re nicked, mate, here’s your enforcement notice.” They will probably ask who he is, write it down and keep a receipt. That is all very well in the context of road traffic offences, because it is possible to find out who the person is—assuming that the car is not stolen—by phoning up the Driver and Vehicle Licensing Agency in Swansea. It will give chapter and verse on who the owner is, which gives a hold on the person.
That is not the case with enforcement notices in pubs. If I had one of those notices, I could say, “I’m Joe Bloggs and I live in Grimsby.” A notice would be written out in the name of Joe Bloggs from Grimsby, handed to me, and I would go on my way rejoicing. I would be highly unlikely to cough up the fifty quid by return of post and I would get away with it. I am sure that the Minister will have thought about how we confirm the identity of those who are subject to enforcement notices.
That is especially important because we are discussing a self-selected population. Far be it from me to say that people who smoke are more likely to commit offences than anyone else, but we are talking about people who have gone into a pub, ignored the notices and are, therefore, perhaps a little more likely than us to give a false identity in order to get away with not paying the £50 fine. With repeat offenders that is particularly important because after they have done it once, assuming that they can think up sufficient names  to give the enforcement officer without including Mickey Mouse, they can potentially get away with it time and time again.
This seems so obvious that I suspect the Minister will have thought about it and, in the regulations that she will put before us at some point, will have a way of determining identity for enforcement officers. Otherwise, the provision stands at risk of becoming a laughing stock. That is important. I know she is thinking about fixed penalty notices for traffic offences, which is when they are most commonly used.

Caroline Flint: No.

Andrew Murrison: Well, it will be useful to know what model she is using. Fixed penalty notices for traffic offences are where most people come across such fines, and it is then easy to determine who the individual is for the reasons that I have described. However, in this case, that does not seem to apply in the same way. There is less of a lever on who the person is and it will be far more difficult to determine and verify that. How will the Minister get around that?
Perhaps the Minister can give us an idea of the cost of the fixed penalty notices. I am sure that she has some idea of the total cost of the system, and I suspect also that she has benchmarked the system that she will propose against those that apply in other countries. I hope so. Perhaps she can give us an idea of the cost of the infrastructure that will be necessary to introduce fixed penalty notices.

Stephen Williams: The hon. Gentleman has covered rather well the ground on which I would have touched, and I shall not repeat anything that he has said. The one thing that he did not mention was paragraph 14 of schedule 1, which is activated by the clause. It refers to the rights of somebody who is issued with a fixed penalty notice to elect a trial instead of paying the fine immediately. If somebody were to elect a trial, and they were to be found guilty of the offence of smoking in a public place, with no reasonable defence—such as not having seen the signs—what would be the penalty? Would it be the original fixed penalty or, as I understand is often the case when somebody elects to go to court, might the magistrate or judge impose a higher fine or another type of sentence as a deterrent?

Steve Webb: Will my hon. Friend reflect on the fact that if a series of fixed penalty notices is issued, the person who issues each notice has no idea about the record of the recipient—in effect, it will always be a first offence. In court, presumably, a judge might have regard to the fact that somebody is a serial offender, and might reflect that in sentencing. Might that discourage people from going down that track?

Stephen Williams: I thank my hon. Friend for that helpful intervention. He builds on the idea that we should like some thoughts from the Minister as to what a judge or magistrate would consider to be an appropriate fine or community-based sentence in such circumstances.

Caroline Flint: We have had a helpful discussion. Speaking as a constituency MP, I remind the Committee that fixed penalty notices are used in a variety of situations, such as for drinking alcohol in certain circumstances. I was pleased to see recently in one of my local papers that fixed penalty notices had been issued to people, including children, who had been dropping litter in the street. That is all part and parcel of the Government’s effort to tackle antisocial behaviour and to find a means of dealing with it in a reasonable but practical way that does not tie up the courts with activities that most of us would agree are unhelpful for communities. We are not setting a precedent in using fixed penalty notices.
Of course there is the risk that people will give misleading information about their identities. Police officers, community support officers and environmental health officers have to deal with that all the time. Clearly, part of the process will be to ask for evidence of identity. That is nothing new and enforcement officers will have to be trained to deal with it. They know how to do it in other circumstances and, therefore, even though this is about smoking, they will apply their experience to it as they would in other situations.
Some specific questions were asked about the cost of enforcement.

Andrew Murrison: Will the Minister give way?

Caroline Flint: I shall, but I hope that the hon. Gentleman will allow me to make progress, because I do not really want to take additional questions while I am still answering earlier ones.

Andrew Murrison: The Minister said that enforcement officers are familiar with fixed penalty notices. However, will she note the comments of the Local Government Association? [Interruption.] The Minister sighs, but—

Caroline Flint: I am not. I am breathing. It is hot.

Andrew Murrison: Well, the hon. Lady is breathing very heavily.
It is important that the Minister notes the comments of the LGA. It says:
“fixed penalty notices are not a matter that typically local authority enforcement staff are familiar with.”
That is fairly categoric. Clearly, the LGA feels that it is an issue, and I think that the Minister is being a little dismissive in saying that EHOs or enforcement officers are familiar with the process because they pin enforcement notices on people like litter. That is certainly not my constituency experience. Her comments suggest that she is being complacent.

Caroline Flint: I am certainly not being complacent, because we are still in active discussion with the bodies that represent environmental health officers and others in local government on the issues of training—I shall answer those points shortly—and enforcement costs. It is fair to say, more and more, that within our communities—certainly in Doncaster—local  government and different branches of a local authority work with others in partnership to bear down on antisocial behaviour. That work could be in the form of community support officers or neighbourhood wardens and looking at ways in which different approaches can be used to tackle some of the antisocial behaviour that we see in our communities—not only that carried out by children, but importantly, that carried out by adults.
In that context, I do not think that the debate is unusual. It may be unusual for individual EHOs to have been involved and potentially tasked with the issuing of fixed penalty notices, but the discussion about safer communities tackling the antisocial behaviour that constitutes a degrading of our environment is something that I am sure that local environmental health officers are only too well aware of as a result of their job and working in partnership with others who have a role in supporting the quality of the environment in our communities. That could be affected by fly-tipping, abandoned cars, graffiti or litter. We have an excellent project in Doncaster called the FLAG—fighting litter, abandoned cars and graffiti—scheme, which is marshalling the support of people across the authority with community first officers to tackle some of the abuses that are linked to fly-tipping, abandoned cars, graffiti and so forth. We shall be discussing that with different organisations.
In the partial regulatory impact assessment, we have estimated the annual cost of enforcement as between £7 million and £20 million. That was based on estimates provided by consultants acting on behalf of the Local Authority Co-ordinators of Regulatory Services—LACORS. We have listened to them, and the figures were based on their assessment. They, too, will find it difficult, until the law is brought in, to determine an absolutely precise amount. We are looking, with the Local Government Association and LACORS, at how best to support local authorities to ensure that they get the appropriate amount to fund them to take on their new responsibility. That includes discussing staff training needs, and who will do the training and who will pay for it. We anticipate—this is recognised by the officers that will be affected by the legislation, as well as the local authorities—that there will be initial training costs, and a peak of enforcement costs in the first year or so. I hope that thereafter costs will diminish as smoke-free becomes more of the norm. We will agree a final funding amount to ensure that the local authorities have the proper resources to enforce the legislation. How local authorities go about the business of enforcement is partly for them to determine.

Andrew Murrison: I could see that the Minister was about to move on from the issue of who is going to pay for enforcement, and she says that the cost is between £7 million and £20 million. Can she confirm that that sum will be met out of the existing Department of Health budget? If so, what is the opportunity cost? What will the Department of Health not be doing that it would have been doing, had it not been faced with that £7 million to £20 million cost?

Caroline Flint: Well, of course, in introducing this Bill, we have undertaken the partial RIA and have had to make our case across government. The measures will come into force in summer 2007, so it is not appropriate to answer that question, because we are talking about future costs. However, we are taking the issue into account and I can assure the hon. Gentleman, as we have assured colleagues in other Departments and the associations, that we are working to ensure that we can fund appropriately the work in this area.
It would be difficult and ridiculous for me to prescribe from the centre how each local authority, working with its environmental health officers, should go about enforcing the legislation. We are not giving local authorities a prescriptive model whereby a certain number of environmental health officers must be out on the streets at a given time of day, checking on who might be committing offences. It is for local authorities to take such decisions.
We want, however, to set up a national compliance line, mirroring arrangements in Ireland and, I understand, Scotland, to allow the public to report incidences of the law being broken. That service will aim to offer additional support for building and maintaining compliance with the legislation. In those circumstances, all complaints will be passed to the appropriate local enforcement agencies. That will be especially useful in identifying and acting to stop deliberate and repeated flouting of the legislation in specific enclosed public places. Obviously, the clause will also act as an indicator of compliance.
I imagine that in a number of circumstances, common sense will prevail, so if someone walks into an establishment and attempts to smoke a cigarette, cigar or pipe, the people running the establishment will ask the person to desist. Doing things on a voluntary basis seems to work well on most occasions, and I do not have a huge concern that that will not work similarly well in future. Clearly, however, if someone did not desist from smoking, having been asked to do so, the people in the establishment would obviously want to see further action or would call for advice and support from the relevant section of the local authority.

Andrew Lansley: I am sorry to persist with the question of the financial effects, but it seems perfectly proper to ask and to answer now the question of how the funding mechanism will work if enforcement costs fall on local authorities. Perhaps the Minister can tell us whether that will be achieved by way of an additional specific grant from the Department of Health or a PES—public expenditure survey—transfer between the Department of Health and the ODPM and whether we are talking about an addition to local authorities’ formula grant. Has a mechanism been decided on? By extension, presumably the Department of Health, when considering budgets for 2006–07, is already contemplating how what we are discussing is to be provided for and whether it has implications for other measures inside the Department.

Caroline Flint: We are still in discussion with the Local Government Association and other organisations on the level of funding and the process whereby funding would be provided. Clearly, we will not seek to have the legislation enforced unless that is resolved. We have given that commitment to those organisations and to other Departments in seeking their support for the Bill.

Andrew Lansley: Were the enforcement to be not for the ban that the Government propose but for a more comprehensive ban on smoking in public places, would the enforcement costs be greater or less?

Caroline Flint: If I recall the RIA correctly, the enforcement costs were said to be less if there were a total ban, but there would still be enforcement costs, because people could still flout the law. Certain establishments, even under a total ban, would seek to circumvent the law in one way or another.
As I have said, there have been just under 30 prosecutions in Ireland. That is a small number, given the size of Ireland, but my understanding is that those prosecutions relate more to establishments that have tried to circumvent or have ignored the law. It would be fair to say that those prosecutions and the levels of fines issued against those establishments made it clear that breaking the law would not be tolerated. It is also to be hoped that they have acted as a deterrent. Up until the end of May 2005, there had been 28 court prosecutions.
A number of questions were asked about individuals who smoke in smoke-free places. The hon. Member for Bristol, West asked whether the fine that would be issued to someone who appeared in court would be confined to £50. My understanding is that, if someone were to appear in court, the fine could be up to level 1, for which the fine is £200. In those circumstances, the court could take into account evidence that it was not a first offence.
I suggest, however—I do not know in what circles the hon. Member for Westbury moves—that for most people out on a Thursday or Friday night a £50 fine is a bit of a risk. People do not necessarily have £50 in their back pocket to pay a fixed penalty notice for the pleasure of lighting up a cigarette. I might be wrong about that, but people do not necessarily have that sort of money to burn—or to smoke. Fifty pounds is a significant amount. I hope that, in many circumstances, the situation will not come to that. People who make a mistake will be asked to put out the cigarette or to leave, and that will be the end of the matter. That would be a common-sense approach to take. If it becomes more of a problem, fixed penalty notices will be issued or people may have to attend court.
I hope that I have answered the question from the hon. Member for Bristol, West. We must continue our discussions on enforcement. Enforcement officers will have to produce their written authority if required. That is an important safeguard for individuals, who will not agree to a fixed penalty notice if someone simply tells them to pay it. The enforcement officer must produce identification.
Likewise, I think I am right in saying that people will have 29 days to pay. If a person accepts and pays a fixed penalty notice, he or she will not get a criminal record. That is a further deterrent to people who seek to go to court, perhaps to waste the court’s time. As well as receiving a fine, they will have a criminal record as a result of that court appearance. I hope that the clause will add to the mix of carrots and sticks to encourage people not to smoke in smoke-free places. It also makes clear the consequences should they do so.
As I have said, fixed penalties must be covered in the legislation, but it is my heartfelt hope that, as has happened in other countries and drawing on our experience of voluntary smoke-free places, many of the provisions will not be used in practice.

Question put and agreed to.
Clause 8 ordered to stand part of the Bill.
Schedule 1 agreed to.

Clause 9 - Offence of failing to prevent smoking in smoke-free place

Question proposed, That the clause stand part of the Bill.

Andrew Murrison: Clause 9 establishes the offence of failing to prevent smoking in smoke-free places. It could be called the “bang on the nose” clause, because it introduces the possibility of verbal or physical violence being visited on those whose job it is to run licensed premises.
When we discussed the level of management to which the proposal might apply the Minister gave us some comfort by saying that the person who had the potential to commit the offence of not having prevented smoking on the premises must be sufficiently high in the management chain for responsibility reasonably to be pinned upon them. However, the Minister was not sufficiently categorical, so if she will forgive me I will labour the point.
Many people who work in the sector are not particularly well paid. When they take on the job they do not expect to be given much management responsibility because that is not what they sign up to. Yet many of them are given high-falluting titles that suggest that they may have some sort of management function—I suppose the classic example would be the McDonald’s restaurants, where everyone is called an assistant manager. In practice, that means very little, but it implies that the person has some sort of management function and responsibility. Under the Bill, it is possible that individuals who are, in truth, at a very lowly level in an organisation will be blamed for having failed to stop somebody smoking, or at least interviewed about it. That would introduce a whole new angle on those jobs, which is not entirely appropriate.
I hope that the Minister can make it reasonably clear for the record how she expects the offence to work in practice and thereby protect people at the grass roots of the licensed trade and the hospitality sector from any possibility of being charged because they failed to tell someone to put their cigarette out. We should always remember that we are not talking about a normal situation, but situations in which a reasonable amount of alcohol may have been consumed, which may lead to more violence and a greater likelihood that, if challenged, an individual will react in an adverse fashion. By creating the offence, we potentially put people at risk.
We discussed the potential for enforcement officers to be at risk, but I suspect that as, regrettably, we now have 24-hour licensing, most of them will operate throughout the day, perhaps at lunchtime and probably earlier in the evening, rather than later which is when trouble tends to arise. There is a potential for inflammatory and difficult situations to arise in which junior, and perhaps quite young, people may be put at risk. It would be useful if the Minister commented on that matter and gave the Committee some assurance that those people will be protected.
It would be useful to discuss in which situations, other than those involving the licensed trade, the Minister thinks it would be appropriate for individuals to advise those who are smoking that they must put out their cigarettes. I am most concerned about the licensed trade but I suspect that other sectors will be involved, too. We do not want a Cambodian situation, in which we are all expected to tell others to act in a particular way for fear of being censured ourselves.
I am therefore concerned about the provisions, as is the LGA and the Chartered Institute of Environmental Health. With that in mind, it would be great if the Minister gave us a little reassurance that the offence created by clause 9 will not be used to criminalise those right at the bottom of an organisation’s management chain and that responsibility will be pinned at an appropriately high level in that chain.

George Young: I shall develop my hon. Friend’s point in relation to subsection (3), which makes it clear that the person whose job it is to ensure that a place is smoke-free can, in certain circumstances, commit an offence. My concern is not with the people right at the bottom of the management chain, but with those right at the top.
For the sake of argument, let us take the Palace of Westminster. These are premises in which people work and I am not aware that we exempted the Palace from the provisions of clause 2. There is therefore a duty on somebody who
“controls or is concerned in the management of smoke-free premises to cause a person smoking there to stop smoking”
in the Palace of Westminster. The Palace is largely smoke-free, and so it should be. The Aye Lobby and the No Lobby are also smoke-free premises, and one should not to smoke in them. I am happy to say that when I vote with my party, which is 99 per cent. of the time, I do not see anybody smoking. More recently, however, I have voted with Government Members,  who have needed the support of Conservative Members from time to time, and I have seen people smoking. I have not bothered to do anything about that, because it would be churlish so to do, but as I understand subsection (3), the Serjeant at Arms, the Clerk or somebody else would be failing in their duty if they did not stop people smoking in the Lobby. The person who is smoking might not be charged with an offence, but the person whose job it is to ensure that the premises are smoke-free—this would apply anywhere, not only in the Palace of Westminster—commits an offence if he does not discharge that responsibility.
My hon. Friend the Member for Westbury said that it might be quite difficult for people to enforce the provision, but they will none the less commit an offence, and the clause goes on to specify what sort of offence that might be. It would be helpful if the Minister reassured us that she has thought the provision through, that it is in line with existing legislation for places where smoking is already banned, such as on railways, airlines and buses, and that it is broadly in line with the responsibilities that other countries have placed on management when introducing provisions such as those in clause 9.

Steve Webb: I have a couple of observations to make. The tenor of Conservative Members’ remarks was that the clause could be too severe, particularly in relation to junior members of staff. I share the view that we do not want new, inexperienced junior members of staff to be put in a difficult position or to be unduly penalised. I therefore hope that the Minister will repeat the comments that she made at the start of the sitting, when she said that that is not what the clause means in terms of management and responsibility.
However, there is a contrary argument. Some suggest that the penalty is not severe enough and that it should be more severe. The rationale for that view is that in the Bill the manager of a premises who fails to prevent smoking is liable for a penalty of up to £200, whereas the maximum penalty in the Irish Republic is £2,000 and there is also a power to close the premises for three months, which is clearly very serious. The question is how seriously do we want licensees, landlords and managers to take the responsibilities in the clause?
We shall come to other enforcement issues, but there will clearly not be many enforcers and they will not be present much of the time, so the chances of being caught are pretty slim. My philosophy of criminal justice—I am sure that you have been dying to hear it, Lady Winterton—is that it is the fear of being caught, not the penalty, that is critical to ensuring compliance. In the present case, however, there is a low likelihood of being caught, because there are few officers who have to cover a lot of ground, perhaps late at night, so people will know that there are times when they will get away with the offence. If we combine a low likelihood of their getting caught with the fact that the penalty will be a couple of hundreds pound at the most, it makes me wonder whether the action to cope with the offence is sufficiently serious. Just as we want smokers and potential smokers to be subject to a cultural shift,  so we want managers to be subject to a cultural shift so that the offence of breaching clause 9 provisions is taken seriously and the punishment is not regarded as a token slap on the wrist so that people feel that they can commit the offence again.
As for the point made by the right hon. Member for North-West Hampshire, I worry less about the Division Lobbies in the Commons than about other premises because few enforcement officers will be allowed to carry a sword to enforce the law. Royal palaces are probably excluded from the Bill anyway, so that is not a particular concern. In ordinary circumstances, however, I am worried that little enforcement will take place.

Andrew Murrison: Will the hon. Gentleman give way?

Steve Webb: I am about to finish by saying that if the fine is a slap on the wrist, we might not achieve the cultural shift that we want.

Caroline Flint: Members of the Committee will be aware that, from Easter this year, virtually all parts of the House of Commons were designated smoke-free. The palace is Crown property, so it is not covered by legislation. That said, if the right hon. Member for North-West Hampshire finds himself in that position again, I am sure that the Serjeant-at-Arms would be willing to send a letter to all MPs reminding them of the non-smoking areas in the House of Commons. I hope that that might be enough to encourage compliance with the rules under which we are asked to work.
I take the point made by the hon. Member for Westbury. Let us imagine that we are in a public place such as a supermarket, a small shop, a café or restaurant, a pub or even a leisure centre and someone comes into the building, perhaps worse the wear for drink, and makes a nuisance of himself. He might not be under the influence of anything, but he is making a nuisance of himself. Dropping litter, vandalising parts of the building and smoking in a smoke-free establishment are challenges that are faced daily by people who work in such environments and they must be dealt with in different ways. Organisations such as the Union of Shop, Distributive and Allied Workers have a campaign in respect of violence and abuse towards shop staff, which I very much welcome and commend. It is the reason why it has been engaged with the Government on anti-social behaviour issues.
I am not complacent about problems faced by employees who have to deal with the public in bars and elsewhere. They might have to ask a person to desist from doing something or to curtail a certain activity. Clearly, it should be a company’s policy to advise its staff on the action that they should take and on where they should seek advice and support—even from security staff—to deal with situations when it is likely that the person in question will not go away quietly.

Andrew Murrison: The Minister has given us some examples of situations in which there may be potential problems, such as when people are violent or the worse  for wear because of alcohol. Does she accept that some people naturally appear to be aggressive and intimidating? That might be a cause for someone to back off. People are different: some are assertive, some are not. What assessment can be made of both the person committing under an offence under the Bill and the person who is smoking? To what extent will subsection (4)(c) be a defence if the offender, the smoker, is a big intimidating individual and the person who would be criminalised under the clause is not particularly assertive?

Caroline Flint: I think that I said that in my opening remarks that there may be occasions when someone under the influence of anything can act aggressively. Another factor is that we come in all shapes and sizes, and people who may look as if they could be aggressive turn out not to be and others who may look as meek as lambs can turn nasty if asked to desist from doing something. Employees who deal with the public have to face such situations every day, but we do not suggest that people should put themselves in danger when trying to ensure good order. That is important.
As I said earlier to the hon. Member for Northavon, the responsibility lies mainly with those who control or manage smoke-free premises. It would be a defence for a defendant to show that he had taken reasonable steps to stop a person smoking—that he had requested a person to stop smoking, but the person simply continued—or that he did not know and could not reasonably be expected to have known that a contravention had occurred. A person could be given false information by an employee; or a scenario could occur in which a friend of the employee’s—I hope it would not happen—decided to look away and not pass on information to the employer, but another customer decided to refer the matter to the local authority. In such situations, the manager might be held to account for something of which he was not aware, but he could not be held responsible for it. I can think of other examples. For instance, staff sometimes have to give priority to other legal duties. For example, while a shoplifting episode or something else is happening in a store—perhaps someone is having a heart attack—the staff dealing with that situation could fairly claim in defence that they could not at the same time handle the fact that someone had walked in with a cigarette. In such situations, one has to apply common sense.
The hon. Member for Westbury spoke about alcohol, but there will be exemptions for bars that do not serve food. That will give those who want a drink the option to have a cigarette at the same time. It is not necessarily the case that people have no choice: they have the choice of going somewhere else. It is fair to say that choice could help to dampen concerns about aggressive individuals being asked to smoke elsewhere. That is an important point to make, because the hon. Gentleman made a lot about the mix of alcohol and smoking in bars and the fact that it might be a problem to tell someone who had had a drink that they could not smoke. We have discussed at length the fact that we are exempting bars that serve only alcohol, so there  is a choice. Smoking is not totally cut out. I hope that I have covered all the points made by the hon. Member for Westbury.
As for the points made by the hon. Member for Northavon, I said earlier that I was still considering the question of deterrence. Part of our consultation dealt with those who control or manage establishments. The view was expressed that the fines should be higher and I am reflecting on that. I must also take account some of the other questions raised about the fine. A fine of up to £200 is proposed; that is the amount on which we consulted. I would be very interested to hear the views of members of the Committee—if they do not want to say now, they can let me know informally—on whether it is sufficient, especially as some may feel that it is a price worth paying given the takings on Friday and Saturday nights. That is a valid point. If we think of the thousands of pounds that can be made over the weekend in some licensed establishments, it may seem that it is worth risking some of the fines. I am thinking about that.
I am also thinking about repeat offences. I would prefer there to be few repeat offences. I hope that offenders will realise the error of their ways, decide that the fine is not a price worth paying, and deal with the issue themselves. Again, I would welcome the views of others on that, either in Committee or outside it. I hope that the Committee will let clause 9 stand part of the Bill.

Question put and agreed to.
Clause 9 ordered to stand part of the Bill.

Clause 10 - Enforcement

Steve Webb: I beg to move amendment No. 76, in clause 10, page 6, line 15, at end insert—
‘()In making regulations for the purposes of this Part, the appropriate national authority shall consult with organisations representing those enforcing this legislation.’.
We continue with the subject of offences, but are moving on to enforcement. As the Committee will be aware, the clause deals with which national authorities have responsibility for enforcement and to whom those responsibilities may be delegated. There is talk of an authorised officer doing the enforcement.
The purpose of the amendment is to stress to the Minister that we are keen for regulations on how enforcement should take place to be drawn up in close co-operation with, as the amendment says,
“organisations representing those enforcing this legislation.”
We have in mind groups such as the Chartered Institute of Environmental Health and the Local Government Association—the front-line staff with the expertise from which we hope the Government will benefit. We had an exchange in which the Minister said that her instinct is that those people know all about fixed penalty notices. That was the tenor of her remarks. The response was that the associations have said that their people do not do that kind of thing and that this is new territory for them.
A number of issues are involved. I shall try not to repeat what has been said, but clearly some of it is germane to why we need to listen to organisations, certainly on safety. Let us imagine a crowded pub—we are getting slightly obsessed with pubs, but this is an obvious example—where people are fairly well oiled and more than one person is smoking. In a way, if there is just a lone smoker, enforcement is not so much trouble, because there will be much more peer pressure. However, it will be harder to approach a group of smokers, so in such a case we should assume that there would be not one environmental health officer, but two or more.
As I understand the clause, environmental health officers do not necessarily have police powers, such as the power of arrest or power to demand identification, but it would be helpful if we were slightly clearer about that. The Chartered Institute of Environmental Health is concerned that a spot fine will be ineffective
“unless it is linked to police powers to require the production of identification, detain and if necessary arrest offenders.”
It is referring to the risks to enforcement staff. Clearly, we do not want to put enforcement staff in a dangerous position, so I hope that when organisations make representations to the Minister, the Government take account of them.
In parentheses, I should say that when the amendment says, “shall consult with”, implicit is “and shall take notice of what they say”, but I do not think that we will be able to include that in the Bill. There are precedents in relation to the smoking ban issue in which consultations were held but notice was not taken of the results. We want the Government to listen to, and act on, what the organisations say. We are highlighting concerns about safety and shortages of enforcement officers.
A recent survey conducted by the Chartered Institute of Environmental Health has revealed a national shortage of some 700 environmental health professionals throughout England, Wales and Scotland. Presumably, several hundred more will be required to enforce the legislation, so the question is where those people will come from.
I do not imagine that people will queue up to reply to an advertisement for people willing to spend their Friday nights going into crowded pubs, approaching drunks and asking them to put out their cigarettes or giving them fixed penalty notices. I support the legislation, but the Government will have to learn more from what the people on the front line are saying if they are going to get this right and enforce it effectively.
I appreciate that there is time before the regulations are introduced, as the amendment implies, but I would be grateful for any assurance from the Minister that she will listen to the professional institutes now. Given the shortage of environmental professionals, we need to train new people to do these jobs, which clearly will take a long time, so the sooner the Government listen and act on the recommendations of those professional bodies, the better.
We have not yet got to the bottom of the issue of enforcement officers asking for proof of identity, as we assume they will have to do. As I said, the CIEH has said that its enforcement officers need those powers. I do not know what pubs you go into, Lady Winterton, but many of the people I go to pubs with do not carry identity. They may have a credit card with their name on it, or a driving licence, although obviously we encourage people not to drink and drive, or they may not. Until the happy day arrives when the Government require us to produce an ID card when we buy a drink, it is not clear how enforcement will work.
What is an environmental health officer meant to do if he asks the name of someone who is smoking and that person comes up with a name but cannot prove it? Car drivers, for example, have to produce documents, so the car is a fixed reference point from which to determine a driver’s identity, as we have discussed. In the case of an individual, however, the amendment probes the question of how confrontational the environmental health officer will have to be in such circumstances. If someone gives an implausible identity, will the officer have to ask for proof? What are the powers to do that? The professional bodies have strong views that I hope the Minister will take into account.
I am aware of the broader debate to be had on the clause as a whole, so I shall not persist with my argument. I hope that the Minister will assure us that she already has plans to listen to what the professional bodies are saying and to take action to deal with the very serious shortage of people to enforce the legislation.
I have another point to make in parenthesis. Mention has already been made of the public being able to ring a number and report a smoker. How far will the work of the professionals who must enforce the provision be reactive and involve going to a known problem area to deal with problems and report them? In which case, will they have sufficient numbers to overcome those problems and how far will this be proactive, involving touring the bars and pubs to see what they can find, which is a very different model of enforcement?
Again, I hope that the Minister will listen to what the professional bodies believe to be the most effective way of enforcing the legislation, which I want enforcing just as much as she does.

Eric Illsley: I call the hon. Member for Westbury, who has almost stood up.

Andrew Murrison: I believe that I made my intentions clear this time, unlike on previous occasions when I may have been a little more subtle.
There is a great deal of sense in the amendment tabled by the hon. Member for Northavon. It is clear that Ministers have not adequately explored the implications of the Bill with various interested organisations, otherwise the Local Government Association, for example, would not have volunteered the fact that its members’ employees are not at all  familiar with fixed penalty notices. It was quite explicit about that. We might already have ironed out some of these issues if the Minister had consulted the LGA, the CIEH and the Health and Safety Executive a little more fully. I mention the HSE because the guidance notes do not restrict the definition of enforcement officers to environmental health officers. I am a little confused about who might be considered enforcement officers, even at this stage.
A number of organisations are potential consultees, and I hope the Minister will approach them before she makes any regulations. The amendment’s purpose is to reinforce in her mind the need to consult such organisations before she takes the regulations further.
That is all I want to say at this juncture. I am aware that we may, if we are very lucky, have a clause stand part debate, during which I would like to explore the clause a little further. I support the hon. Member for Northavon, whose point is extremely well made. It is regrettable that the amendment is necessary. It seems, given the representations on the Bill that we have received from various organisations, that, arguably, we have got off on the wrong foot, as it has been suggested that Ministers have not consulted as well as they should. They would be well advised to do better in future. With that in mind, I am inclined to support the hon. Gentleman.

Caroline Flint: The discussions are ongoing, and I have made that quite clear. There will be draft regulations, which I shall ensure are informed by discussions and consulted on before being subjected to the affirmative resolution procedure. There is no suggestion that all the issues have been resolved. Some areas have to be considered further, and details of those have to be provided.
When I mentioned fixed penalty notices, I was not suggesting that environmental health officers have the necessary experience in issuing them. However, I find it hard to believe that in our environment—with regard to local government and the steps taken to tackle antisocial behaviour in our communities—environmental health officers, trading standards officers, community support officers and those working for councils in partnership with the police and others are unaware of fixed penalty notices as a means of curtailing inappropriate activity in the community.
I hope that, as part of the discussions with the relevant organisations, there might be a debate with those within and outside councils on how fixed penalties are applied in the community. That might be helpful and give an indication of the issues and problems, as well as the opportunities, that fixed penalty notices provide.
I agree with the sentiment behind the amendment tabled by the hon. Member for Northavon, but it is unnecessary to include it in the Bill because we have already agreed to do this. Indeed, we are already doing it. That is one reason why we deferred to the independent consultants used by the Chartered Institute of Environmental Health when it devised a range of estimates of what the costs may be—between  £7 million and £20 million. That shows that we continue to listen to those who can support us in this area.
Consultations will continue to take place. A number of issues have been raised by hon. Members relating to points made in the briefing by the LGA and others. I will ensure that officials deal with those points and that they form the substance of continuing discussions with those organisations. As I have said, we all desire the draft regulations to be informed by those consultations and we will give a further opportunity for consultation once they are published.

Steve Webb: Will the Minister reassure me on this point? Clearly, representations have already been made and discussions have taken place, but my point is that I am not convinced that enough notice has been taken of what has been said. Given that organisations have already raised the point about the shortage of people to do the job, what are the Government doing about that?

Caroline Flint: On the surface, it is difficult to raise an issue about the shortage of people to do a job when it has not yet been determined how much work will be involved. It is common sense to recognise that in other jurisdictions where restrictions or bans have been brought into force the experience is that enforcement has not been as necessary as people might have thought.
There has been huge self-enforcement and compliance, and it is difficult to determine at this stage how many extra environmental health officers, trading standards officers or others may be necessary to enforce the legislation. A common-sense approach is important. In the lead up to the enforcement of the legislation, it is important that, within local communities, there are discussions with establishments that will be obliged to be smoke free as to their responsibilities under the law, where they can go for extra advice and how to sort out the signage. There should be discussions in local communities about how best to enforce the legislation.
On the point about compliance, I have to admit that some activity will be reactive, but, to be honest, I would suggest that quite often environmental health officers and others react to information that they are provided with in order to ascertain whether an establishment is flouting the law in an ongoing way. They have to deal with that in all sorts of areas—this will be just one of them.
In the same way, trading standards officers often have to respond to information and intelligence provided about selling cigarettes, alcohol or glue—and in the future, with the legislation that is coming in, knives—to those who are under age. That is nothing new, so I do not think that some of the points are particularly well made. However, I can assure the Committee that I will ensure that all the points are discussed. We may not agree with some organisations all the time, but that is part of the consultation process. We want to ensure that the Bill works and is effective, because it is in no one’s interest to have ineffective legislation.
On the point about identification, paragraph 2(e) of schedule 2 sets out the requirement for an individual to give information to an enforcement officer. Not giving correct information may be an offence. My advice is that that deals with the point about the provision of a name and address. I will seek further assurance on that and also take the time to look at how it applies in other circumstances, when fixed penalty notices are used for other reasons but operate in a similar framework. However, my understanding is that that provision basically provides that power or influence to an enforcement officer.

Steve Webb: I accept that paragraph 2(e) of schedule 2 appears to give enforcement officers the power to ask for the information, but what will happen if the individual says that they cannot prove who they are? What is meant to happen then?

Caroline Flint: Again, that issue will have to be considered. The enforcement officer may want to ask the publican or others, if the person in question is with a group, whether they can confirm who the person is. I imagine that that is not the only time that we will be confronted with a situation in which people want to find a way to get around having to declare their identity to those who have a right to ask for it. Those issues must be thought through.
We need to be clear about the powers of the environmental health officer, or somebody else who may be designated to undertake the role, and take advice and find out what would happen in the other circumstances that, for different reasons, apply just as well. There may be other circumstances involving police officers, rather than environmental health officers, who may find that someone says, “I’m Bert Bloggs, but I can’t prove who I am.” We must have discussions with people about how they deal with such matters and, in doing so, ensure that the powers are proportionate and reflect the individual citizen’s rights under the law.
I hope that, given my assurances about the ongoing discussion on enforcement, the consultation in relation to draft regulations and the affirmative resolution procedure, the hon. Member for Northavon will withdraw his amendment and we can move on to the clause stand part debate.

Steve Webb: I am only partially reassured by the Minister. I do not doubt for a moment her good faith, or that discussions have happened, and I do not even doubt that further discussions will take place, but I do not get a strong sense from her response, and some of her comments earlier this afternoon, that the Government understand that “consult” means “consult, take account of and act on”, not merely “be in the same room as”. A lot of issues need ironing out.
The Minister implied—I hope this is not an unfair paraphrase—that the law is not coming in for a couple of years so the Government cannot know how many environmental health officers will be needed. Given that it takes six years to train a dentist, an environmental health officer cannot be generated overnight. Forward planning is needed. The professional organisations we are talking about are  saying that now, but the Government are saying, “That is years down the track and it is absurd to talk about it now.” There is a disjunction.
Likewise, we all know what a fixed penalty notice is, but the professional bodies are saying something stronger—that they have no experience of dealing with them. The Minister seems to think that that is not a problem, because someone else in the council hands out fixed penalty notices, so environmental health officers should just talk to them. That response is complacent and the effectiveness of the ban that we Liberal Democrats want may be undermined if the Government are not obligated to listen and learn from the professional bodies.
I will not withdraw the amendment, because I wish to test the view of the Committee.

Question put, That the amendment be made:—

The Committee divided:  Ayes 7, Noes 8.

NOES

Question accordingly negatived.

Question proposed, That the clause stand part of the Bill.

Andrew Murrison: We are somewhat concerned about the implications of clause 10(4) and we seek clarification from the Minister of what she means by it. It seems that she wants to abrogate the powers that would be given to the enforcement authority under certain circumstances and give them to the national authority. We want to know what those circumstances might be. We understand that they will apply to a set of cases or situations, or on an individual basis. That leads me to think that she might wish to use subsection (4) if, for example, a local authority was not enforcing the legislation in a way the Government felt appropriate.
We have heard about resources being handed down from the Department of Health—between £7 million and £20 million—to local government to carry out this work. As we understand it, that will not be ring-fenced. Therefore, the Government might take the view that they need to have a handle on how the money is being used and whether it is being used to enforce the legislation. How will they do that? How will the national authority have that handle on enforcement authorities—on local government?
The Minister may say that that is how the Government intend to do things. This could be simply the big stick. If not much enforcement was going on, however, the national authority might decide that it needed to take the powers. If that is the case, perhaps she would let us know. What measures will she take to audit the enforcement action taken by local authorities? That is obviously linked with this matter, and presumably Ministers will be interested in that.
The Minister more or less said that all this will be reviewed at some point. Presumably one of the things that she will examine is the enforcement activity that is occurring so that she can ensure that local authorities are enforcing, rather than using the money for other things.

Andrew Lansley: This may not have any bearing on the matter, but although subsection (4) gives the national authority—meaning the Secretary of State or the Welsh Assembly—the ability to act as its own enforcement authority, as far as I can see, the clause does not require such enforcement activity to be undertaken by a person who has qualifications as prescribed by the regulations. Subsections (5) and (6) relate to the “authorised officer” of an enforcement authority but would not bite on persons acting on behalf of the Secretary of State or the Welsh Assembly.

Andrew Murrison: My hon. Friend, as ever, makes a good point. No doubt the Minister will try to establish who in the national authority, in the circumstances referred to in subsection (4), would be entrusted with taking enforcement action, local government presumably having failed in some way. It is not at all clear what those circumstances would be. Hopefully, the Minister will be able to give us some sort of clue.
I am concerned about something else. We understand that a sum of money will be handed to local government for the purposes of enforcing the legislation, and we have identified after a fashion where that money is coming from, but the risk is that local government, faced with the demands that we know it labours under, will use the money for something else. It would be interesting to know where in the great scheme of spending priorities the Minister feels this will lie.
I can think of all sorts of pressing things that exercise my environmental health department. I am in constant dialogue with my local authority. I regularly raise things relating to noise and such issues with the chief executive of my district council. Environmental health officers spend a great deal of their time addressing issues at the behest of people such as myself and other members of the general public. A great deal of their time is spent on firefighting: responding to various concerns raised by individuals. That, inevitably, is where all the money will end up being spent. My worry is that it will all be rusticated to local government and spent on other things. We might not get much enforcement or it might be done in a piecemeal way.
The Minister presumably has some idea how much enforcement there should be. I know that it is difficult to assess, because enforcement will vary from area to  area, but she has so far refused to say how many extra environmental health officers or enforcement officers she envisages being employed, where they will come from and how we will train them. She really needs an indicative figure for enforcement activity so that she has an idea how many officers will be required, but she has so far given no idea what that figure might be. Clearly, one cannot be precise, and we do not expect her to be, because the Bill will not be enforced for some time yet. Nevertheless, she must—at least, she should—have some idea of the figure given the assessment that enforcement will cost between £7 million and £20 million. Admittedly, that assessment is rather wide, but the Minister must have made some calculations to come up even with that. Staff costs will be the cost driver and must translate into the number of environmental health officers or enforcement officers she envisages being employed to carry out the work. I therefore ask her to be a little more specific and particularly to address subsection (4), which deserves some explanation.
The Local Government Association is clearly very concerned, and the Liberal Democrat amendment, which I think was taken verbatim from the one suggested in the briefing note with which we were all provided, underscores the association’s worries. The LGA talks about clarity and the fact that things that are clear are easier to enforce, as my hon. Friend the Member for South Cambridgeshire (Mr. Lansley) said. The association makes a plea for clarity and says that greater clarity would lessen the burden on its members and make the provisions largely a matter of self-regulation—a subject that we discussed earlier. The Minister has more or less admitted that had we erased the distinction between food and non-food, as the Opposition proposed, the Bill would have been not only better, but far easier to enforce. The light touch to which she referred would then have been appropriate and all that was necessary to enforce the measure.
 The LGA is concerned about better regulation and mentions the Hampton review of March 2005. To what extent has the review been factored in? How much thought has the Minister given it in the context of clause 10? We have covered fixed-penalty notices reasonably exhaustively, but they are important. The LGA, which is right at the front on this issue, is clearly of the view that FPNs, as the Minister put it, are new to its members, who employ environmental health officers. That is what the association says, and we must take it at face value. There will clearly have to be something of a culture change so that environmental health officers and enforcement officers are comfortable with the measure and particularly with FPNs. I am worried about the implications for enforcement officers of pinning FPNs to individuals, and the hon. Member for Northavon was correct to note that they will be putting themselves in the line of fire. We assume that more enforcement officers will be required to enforce the legislation. It would be remarkable were that not to be the case. We know from constituency experience that there are often difficulties with environmental health departments. It is difficult to get an EHO to investigate a complaint  about noise or whatever, or to survey the hospitality sector in our constituencies to ensure, for example, that food safety is of a proper standard.
Where will all the EHOs come from, especially as we are changing the job spec somewhat? Although I suspect that EHOs are used to confronting individuals from time to time, to challenging people’s behaviour and to giving people bad news, I doubt whether many are welcome visitors to premises. Nevertheless, clause 10 moves them up a league, because they will, according to the Bill, be expected to face down difficult situations in tandem with those who will be responsible for the day-to-day management of premises.
One not only expects to recruit more EHOs in a fairly tight time frame but to change dramatically the nature of the job. It would be good to hear that the Minister has adequately thought that through. Is she content that she has consulted sufficiently with organisations such as the Charted Institute of Environmental Health and the Local Government Association to ensure that the legislation is as accurate and watertight as possible?
Will the Minister speak about the new burdens doctrine, with which she will be familiar? To what extent will local government not be involved in funding any new costs? That is the intention of the doctrine, but it appears that, despite the moneys been volunteered in the guidance, there is a risk that that £7 million to £20 million may be a little on the light side, if it is to be enforced properly and if I have read subsection (4) correctly. Indeed, subsection (4) leaves it more or less up to the Secretary of State to determine any duty imposed. If the national authority insists on the increase in enforcement that that relatively small sum of money will allow, the cost will apply to our council tax payers at a time when many constituents are heartily fed up with a tax that has rocketed so much since 1997. I ask the Minister to pay particular attention to clarifying subsection (4).

Caroline Flint: I will attempt to answer several points raised in the debate. On the number of enforcement staff that we estimate will be required in order to enforce the legislation, I refer hon. Members to page 53 of the explanatory notes:
“It is proposed that local enforcement officers dealing with smoke-free enclosed public places and workplaces. Based on consultation response we estimate this might be between 220 and 318 enforcement staff initially, tailing off as legislation becomes embedded.”
I hope that that indicates that we take seriously views expressed by different organisations, just as we have taken on board their independent comments on the different costs. We shall continue to discuss how the legislation will work in practice and how the funding should follow. Of course, monitoring raises issues. We must evaluate the Bill’s success in practice, and one way to do that may be the number of prosecutions. A high number will suggest non-compliance and raise the question whether we should do more to alert the public to the legal state of play. A low number would presumably be some indication of a high level of self-enforcement.
In the early stages we shall, like other countries, set up a national compliance line, by which organisations and individuals will give us information and intelligence about compliance with the law. We shall also engage in continuing discussions with organisations that represent the enforcement authorities, local authorities and the people who will carry out enforcement duties about how the measure works in practice. That is important and would be an essential part of the process, regardless of whether we imposed a total ban or allowed exemptions. Ireland has had to do the same thing as part and parcel of establishing how the law works.
It is wrong to suggest that the discussions under our proposals would not happen under a total ban, with no exemptions. We should still, in that case, have had to follow up matters of signage and enforcement, including appropriate fines for individuals or those who run establishments. We should, regardless, have needed conversations about which bodies should become enforcement authorities and the implications for their work load. It is wrong to suggest that those discussions result only from the approach in the Bill.

Andrew Murrison: The Minister is being very good. I am grateful for the figure of 220 to 318, which I should have read for myself, but I am intrigued to know where those folk will come from, as I understand that being an environmental health officer is a graduate profession and that considerable post-graduate experience is required to qualify. As the Bill’s enforcement provisions will come into force in 2007, it seems that there will, at the crucial early stage that the Minister mentioned, which is also mentioned in the guidance notes, not be sufficient trained EHOs to do the work. What will we do about that?

Caroline Flint: Those matters are part of the discussions, but also part of the way in which local authorities work in partnerships on environmental health issues. It is intended that enforcement officers will in practice be mainly local authority environmental health officers, but others such as trading standards officers or those responsible for health and safety may be appropriate according to local circumstances. That is an aspect of the discussion that we need to engage in, and in part it will be influenced by the structuring of different local authorities and how they work together.

Andrew Lansley: I am curious. Was the Secretary of State’s decision that the provisions would be put into force in summer 2007 and not 2008 made after discussion with the Local Government Association or the Chartered Institute of Environmental Health?

Caroline Flint: I stand to be corrected, as I am relying on memory, but I think that many responses to the consultation—I think some were from local government—wanted the timetable brought forward. I shall check, but many organisations that wanted a total ban also thought that the date should be brought  forward. There is clearly work to be done, and we shall have an opportunity to discuss the issues in full as the Bill and the draft regulations pass through Parliament.
I remind the hon. Member for South Cambridgeshire that although we seem to have concentrated on licensed premises, a great deal of the Bill is concerned with non-licensed public places, to which a total ban will apply. They include cafés, shopping malls and other areas in which enforcement will be required. Our earlier proposal was that a later date should apply to licensed premises, but that has been presented slightly differently in the Bill. We want to work with people in good faith, and it is my understanding from the Local Government Association and those who represent environmental health officers that there was a desire for the Government to legislate. It is not, therefore, the case that individuals and organisations did not want the measures, albeit some of them might have wanted a total ban. Rather, they consider the issue important for environmental health and for the health and culture of the communities in which they work. There are clearly many issues to be sorted out, and we shall endeavour to do that.
The Hampton review, to which the hon. Member for Westbury referred, is considering simplifying inspection enforcement by establishing a new enforcement officer role and a single visit to deal with a range of enforcement issues. One aspect of that is to think about any dual relationship between those working in trading standards and the environmental health officer role. We are considering the issues involved in risk-based inspection. I think that I was frank about the fact that many people who work with the public, whether in the private or the public sector, in an accident and emergency department, in Woolworth’s, in a café, in a pub or on the council tax counter of a local authority, constantly have to review the way in which they deal with people for whom they might not be providing good news, or whom they might be asking to desist from an activity. We should all appreciate that such things have to be considered by those who encounter the public.
That is one reason why we are discussing the training necessary for people who are to carry out that role in relation to smoking. I do not say that there will not be instances in which people become aggressive, but I have found, as, no doubt, have other Committee members, that often, even in an environment that is not non-smoking, somebody who is smoking can be asked politely to do so in another area or not to do so at all. For the most part the voluntary agreement has worked pretty well for a number of years.
On enforcement, and looking at the risk while simplifying the role, we are aiming to see whether a useful way can be found for the work to be spread among a range of enforcement officers. While it is intended that enforcement officers will be mainly local authority environmental health officers, others could play a role as well.
The hon. Member for South Cambridgeshire referred to subsection (4). My understanding is that it is to be used as a reserve power that might be exercised  in a particularly difficult case or when the national authority is not satisfied with the action taken by the enforcement authorities. That sounds pretty tough in that we will have to specify the circumstances in which it will apply. However, I understand that there are similar powers under the Tobacco Advertising and Promotion Act 2002. Clearly, lawyers advising the Government about Bills have suggested that a fall-back power will sometimes be needed if the designated enforcement agency is not carrying out its role.

Andrew Murrison: I may have interrupted the Minister prematurely, but I hope that she will give us some examples, because at the moment she is asking us to accept at face value her assurance that there is some precedent relating to the Tobacco Advertising Act. We need some concrete examples. We are simple folk who need a pen picture of the kind of circumstances in which a national authority might take to itself the powers that it has given to local government.

Caroline Flint: That might happen, I suppose, if there was sufficient evidence to suggest that people were getting away with not enforcing the law or that smokers were not abiding by it. I will seek further guidance, but I presume that the measure will apply in circumstances in which it becomes apparent that an enforcement agency is failing in its duty to act appropriately. As I said, hypothetical situations that spring to mind are those in which evidence has been given—through complaints, for example—that prosecutions are not being undertaken or that people have raised issues that have not been followed up, or in which an enforcement agency refuses to act, even given evidence of abuse of the law, which I doubt would happen. I reiterate that the clause gives similar powers to those given in other legislation, particularly in relation to tobacco advertising and promotion. I shall seek to find out more about that and will write to the hon. Gentleman on this issue, if he agrees to that.

Andrew Murrison: I should be interested to know more. When the Minister writes, will she let me know what qualifications the individuals who will exercise the authority, having taken it from the local government bodies that were meant to exercise it, will have? I am afraid that we are no further forward after the Minister’s comments. I simply do not envisage a situation in which subsection (4) will be necessary. Will she let me know in her letter what qualifications those who would exercise the power from the centre in this hypothetical situation, which I hope that she will describe rather better in her letter, will have?

Caroline Flint: I confirm what I said earlier—it is pleasing to know I was right—which is that in the consultation the Trading Standards Institute, the local government association and other organisations concerned with representing environmental health all suggested bringing forward the date to spring or summer 2007. I acknowledge what some of those organisations said about enforcement and preparation, but that did not seem to get in the way of  their feeling that the legislation should be brought forward. There is a willingness to work to make it a success.
Other examples regarding enforcement authorities are situations in which such authorities consistently fail to enforce, or in which particular companies or industries refuse to comply and it is too difficult for single enforcement authorities to deal with those matters.

Andrew Lansley: I am sorry to hold the Minister up. I am sure that she will be able to describe to us how the measure will work when she has had the chance to think about it, but there is a possible difficulty with the fact that enforcement authorities might be both local authorities and the Health and Safety Executive. The circumstances that she described might not be encompassed within any one enforcement authority or small group of local authorities, but it might be perfectly reasonable to use the power to transfer the case to the HSE. We are not sure that it is necessary in all those circumstances to have this reserve power, as other mechanisms are available.

Caroline Flint: I will seek guidance on that, and am happy to write to hon. Members about it. Part of the objective of Bills and regulations is to cover our bases for eventualities that we hope will not occur but for which we must be prepared. I hope that I have satisfied the Committee as to our continuing dialogue about enforcement. Our best example are those countries that already restrict or ban smoking. Their enforcement costs have been pretty limited and the arrangements have worked well. We will be looking at training for individuals, whoever they may be. Clearly, if someone has not been trained to issue a fixed-penalty notice, we would want to ensure that he has the appropriate training along with those other individuals who have currently been given those powers in the communities we represent.

Question put and agreed to.

Clause 10 ordered to stand part of the Bill.
Schedule 2 agreed to.

Clause 11 - Obstruction etc. of officers

Question proposed, That the clause stand part of the Bill.

Andrew Murrison: I hope that I am making my intentions more and more apparent and springing to my feet with greater and greater alacrity, despite the fact that we are nearly finished.
The clause is reasonably straightforward. It concerns the obstruction of officers, which we have dealt with to some extent. We are all worried about the possible effects of the Bill on those who are entrusted with its enforcement. That point is worth restating. My only other point is a question about subsection (4). Again, it brings us back to where we peg the offence on  the standard scale. It is set at level 3. Can the Minister justify that, because it is fairly high? We do not seem to be talking necessarily about visiting physical violence on people, but merely being obstructive and, in other words, not being helpful. Some explanation of that would be helpful.

Caroline Flint: The offence has been set at that level because it is in line with advice from the Home Office about other occasions when people obstruct the course of justice and refuse to comply by providing information. It is as straightforward as that. While I accept that we are not necessarily talking about a violent situation—although some comments have suggested that a huge amount of violence will be encountered in trying to enforce the Bill—regardless of an offence, whether it is violent or not, to obstruct the course of justice is a serious matter. We should therefore have parity with the levels that apply to the offence in other circumstances, particularly when someone is trying, in good faith, to carry out their responsibilities under the law.

Question put and agreed to.

Clause 11 ordered to stand part of the Bill.

Clause 12 - Interpretation and territorial sea

Amendment made: No. 73, in clause 12, page 7, line 18, after ‘tent,’ insert
‘and (if not a ship within the meaning of the Merchant Shipping Act 1995 (c. 21))’.—[Caroline Flint.]

Clause 12, as amended, ordered to stand part of the Bill.

New Clause 2 - Age of sale

‘The appropriate national authority may issue regulations modifying the Children and Young Persons (Protection from Tobacco) Act 1991 so as to substitute for the age specified in any of its provisions such other higher age or ages as they consider appropriate.’. —[Sir George Young.]

Brought up, and read the First time.

George Young: I beg to move, That the clause be read a Second time.

Eric Illsley: With this it will be convenient to discuss the following:
New clause 7—Sale of tobacco—
‘In section 7(1) of the Children and Young Persons Act 1933 (c. 12), leave out ‘sixteen’ and insert ‘eighteen’.’.
Amendment No. 71, in title, line 2, after ‘vehicles’, insert
‘to make provision in relation to the sale of tobacco’.

George Young: This appears to be the last debate on this part the Bill. It is important because it deals with a subject that we have not touched on so far. I am conscious in moving the new clause that I am treading  all over the flower beds so carefully prepared by the hon. Member for Barnsley, East and Mexborough (Jeff Ennis). I pay tribute to his work. I reread his speech on 18 October when he introduced his ten-minute Bill. He may want to draw on the material that he deployed then. He also touched on the subject on Second Reading.
The new clause would give the Government the powers to raise the minimum legal age for buying cigarettes from 16 to, probably, 18. It would achieve that by allowing them to issue regulations under the Bill that amend the legal age for buying cigarettes specified in the Children and Young Persons (Protection from Tobacco) Act 1991. The new clause differs from the hon. Gentleman’s, which is more prescriptive. He would move the age to 18 and do so now, while mine would permit the Government to raise the minimum legal age at a later date to whichever age they might choose. If it were left to me it would be a higher age than is likely to emerge from the Government.
I said on Second Reading that what the tobacco industry fears is not so much price increases and health warnings, useful though they are, but statements from society that smoking is an unacceptable habit in a public place and that tobacco is a product that it is illegal to sell and consume in certain circumstances. Those are more effective steps to the non-smoking paradise that I mentioned.
Raising the legal buying age would be a modestly useful measure that might have some impact on teenage smoking rates. However, it should not be a substitute for a comprehensive piece of legislation that ends smoking in all workplaces and enclosed public places. I am slightly suspicious that the Government have chosen to trial the proposal in a way that was clearly designed to distract attention from the difficulties that they faced with the exemptions in clause 3.
Last Thursday, just before the Committee voted on the exemption for pubs that do not sell food, the Minister announced that there would be a consultation on whether to raise the legal age for buying cigarettes from 16 to 18. That was an astonishingly timely initiative, which went beyond what she said on the subject only on 29 November in reply to the debate on Second Reading. She said that the consultation on increasing the age limit for cigarettes and other tobacco products would be carried out next year. Clearly, if that consultation is to be meaningful, she will need powers in the Bill to change the age if that is what the result of the consultation indicates. My new clause helpfully provides that opportunity.
In response to the announcement, the Press Association said last week:
“The move follows reports that the health secretary, Patricia Hewitt, was considering backing a Labour backbench plan to ban the sale of cigarettes to under-18s, bringing the law in line with alcohol sales. This would also bring Britain into line with other European Union countries and the US.”
It then quoted what was said in the press release:
“We will consider carefully the results of that consultation before making a final decision”
and continued
“Her comments came during the committee stage of the health bill, which will impose a partial smoking ban in public places—with pubs that do not serve food and private members’ clubs exempt from the ban. Doctors’ leaders, anti-smoking groups and many backbench MPs have described the partial ban as ‘half measures’. The pressure group Action on Smoking and Health described the idea of increasing the age limit for tobacco sales as a ‘cynical’ measure to appease backbench MPs who want the government to introduce a total ban on people lighting up in public places.”
I would never accuse the Government of anything so devious.
The new clause is a complementary measure, not an alternative to a ban. The Government must not seek to use it as a bargaining counter to avoid a ban in pubs that do not sell food. Survey evidence from the Office for National Statistics shows that in 2004, 9,000 11 to 15-year-olds and 21 per cent. of 15-year-olds—26 per cent. of girls and 16 per cent. of boys—smoked regularly. That is despite the fact that the legal buying age is 16. In 1998, the Government set a target to reduce the prevalence of regular smoking among young people aged 11 to 15 from a base line of 13 per cent. in 1996 to 11 per cent. by 2005 and 9 per cent. or less by 2010. The proportion of 16 to 19-year-olds who smoke is currently 26 per cent. About 450 children start smoking every day. More than 80 per cent. of smokers took up the habit as teenagers.
There is some evidence that increasing the legal buying age may discourage young people from starting to smoke. The island of Guernsey raised the age for buying cigarettes from 16 to 18 in the late 1990s. Other measures were also introduced to tackle smoking, including a targeted education programme in schools and higher taxes on cigarettes. Smoking rates among young people on the island have halved since 1997 and only 19 per cent. of adults smoke. Joanne Staples, co-ordinator of the Guernsey Adolescent Smoke-free Project—GASP—has been quoted as saying that raising the age limit has made it more difficult for children to buy cigarettes, which is what one would expect.
However, Guernsey is a small island, where the enforcement of such age restrictions is relatively straightforward. Enforcement across England and Wales would be more challenging. In 2004–05, trading standards services prosecuted 117 retailers for selling cigarettes to children aged under 16. The retailers received penalties ranging from only a conditional discharge to fines of up to £1,000. Many more received cautions. If the Government smile on my new clause—I bring up a point raised by my hon. Friend the Member for Westbury—will they give local authorities the resources that they need for trading standards officers to enforce a new law? Will the penalties for breaching the law match the seriousness of the offence?
Although raising the legal buying age may be useful, the most effective way to get young people not to smoke is to persuade adults to quit. Young people generally start to smoke because they regard it as an adult activity. Putting the equivalent of an 18  certificate on cigarettes obviously will not have much impact in persuading them to the contrary. That is why a workplace smoking law that is truly comprehensive will have more effect than raising the legal buying age. As we have heard, children are three times as likely to smoke if both their parents smoke. Parents’ approval or disapproval of the habit is also a significant factor.
When the hon. Member for Barnsley, East and Mexborough catches your eye, Lady Winterton, he will draw parallels with the Gambling Act 2005, under which some gaming machines will now be restricted to the over-18s, and the Violent Crime Reduction Bill, which raises to 18 the age at which airguns and some knives can be sold. I am sure that he will also give the views of the Trading Standards Institute, which wants the age limit for the sale of cigarettes to be raised to 18.
I know that the Committee is anxious to make progress. I simply say in conclusion that new clause 2 should be supported because it would enable the Government to conduct a meaningful consultation on youth smoking and, after that consultation, to raise the legal age at a future date without primary legislation.

Jeff Ennis: I thank the right hon. Gentleman for his kind comments and for not stealing all my thunder.
It is important to present the Committee with the background as to why I think that we should consider accepting new clause 7, in particular. I welcome the Government’s initiative last week in announcing a consultation on the possibility of raising the age from 16 to 18. I certainly do not view that as a cynical ploy. When I read the White Paper “Choosing Health” when it was first published last November, I thought that there was a glaring omission in the chapter dealing with anti-smoking measures because there was no mention of a consultation on raising the age as part of the White Paper process.
Having discovered that, I submitted a question to the then Public Health Minister, Melanie Johnson, who is unfortunately no longer a Member of the House, and I received a reply on 7 December. My question was:
“To ask the Secretary of State for Health whether proposals to raise the minimum age of sale in retail premises from 16 to 18 years for cigarettes are included in the White Paper consultation process.”
Her response was:
“There are no plans to increase the minimum age of sales of tobacco from 16 to 18. We are not aware of any evidence that such a change would have a significant impact in reducing smoking rates in children and young people.”—[Official Report, 7 December 2004; Vol. 428, c. 495W.]
I thought that that was a glaring omission and I was very disappointed with the response.
I was so disappointed that, on 13 December last year, I tabled early-day motion 380 on the minimum age of sale for tobacco, which read as follows:
“That this House asks the Government to give serious consideration to raising the minimum age of sales of tobacco from 16 to 18 years as part of its consultation process on the White Paper, Choosing Health.”
I am pleased to say that that motion attracted 62 signatures in the last Parliament, from Members in all parties. I re-tabled that early-day motion in the new Parliament as early-day motion 276 on 25 May and so far it has attracted the signatures of 55 Members. I hope that Members who have not signed it will take the opportunity to do so tomorrow. The right hon. Member for North-West Hampshire has already referred to my excellent ten-minute Bill of 18 October, in which I proposed to raise the age of sale from 16 to 18 for tobacco products.
As I have already said, I was very disappointed with the original response. One of the main reasons for that was the statement of the Department that there was no evidence to show that raising the age had made a difference. The right hon. Gentleman referred to the example from Guernsey that I cited in my ten-minute Bill. By 2003, it was established in Guernsey that raising the age cut the rate by some 50 per cent. To me, that is compelling evidence that we ought to have considered such a measure in the Bill. We have already mentioned the fact that other European countries have raised the age, including Ireland. I understand that next year Scotland might raise the age of sale from 16 to 18. On that theme, I received an e-mail from Pamela M. Crowe, a Member of the House of Keys in the Isle of Man. She said:
“I introduced a Bill to raise the age of the sale to tobacco to 18 years 6 years ago, the legislation has worked very well as a provision for proof of age cards was included. Trading standards officers enforced the law.”
Such a measure was also implemented on the island of Jersey last year.
The measure enjoys popular support. When discussing earlier clauses, the Minister mentioned the health survey conducted by the BBC in 2004, which I quoted in my ten-minute Bill. The survey found that 80 per cent. of the people in this country support the measure, particularly young people in the 18-to-24 age category. When the issue was highlighted in the press recently, the BBC and Sky News conducted two telephone polls on the matter, and the measure was supported by 88 per cent. and 89 per cent. of respondents respectively.
The measure enjoys popular support. The Trading Standards Institute has passed a resolution to agree to the measure at its last two annual conferences. I have had numerous e-mails and letters of support from various health professionals. I shall briefly quote from two of them. The first is from Doncaster and Bassetlaw Hospitals NHS Foundation Trust, which covers my constituency and that of the Minister. It is dated 27 October 2005 and is from Emyr Jones, the consultant physician. It reads:
“Dear Mr. Ennis,
Raising minimum age for legal cigarettes purchase.
I understand from a recent story in the news media that you are sponsoring a parliamentary motion aimed at increasing the minimum legal age for the purchase of cigarettes and other smoking related material.
I am writing as Medical Director of your local NHS Foundation Trust to indicate that you have the full support of this Trust, and of the clinicians in this Trust, who provide care for the victims of cigarette smoking related disease. We applaud your initiative and hope that it will be successful.
Together with the measures that the Government is currently taking to protect the health and safety of employees, by banning smoking in public places, we would hope that the measures that you are sponsoring will contribute to the continuing alienation of smokers and the unacceptability of this pernicious habit.”
That is not my choice of words.
The second letter is from my other local health trust, the Barnsley Hospital NHS Foundation Trust. It is from the medical director, David Hicks. He writes:
“Dear Mr. Ennis,
I am writing as Medical Director at Barnsley Hospital NHS Foundation Trust to strongly support your forthcoming proposal to the house under the “10 minute rule”. I understand that the intention of your proposed bill to the House of Commons is to increase the age of legal smoking from 16 to 18 years.
I have consulted my colleagues at the Trust and in particular those working in Respiratory Medicine.
As healthcare professionals and respiratory physicians the devastation caused by tobacco is all too apparent. The British Thoracic Society ... has issued a position statement on tobacco in September 2004”—
which was also before the White Paper was published—
“and this includes the proposal ‘to raise the minimum age of cigarette purchase to 18, without any incremental stages’ .... May I wish you the best of success with your bill which could herald a signal change in public health across the country.”
My proposal not only has the support of the people and the health professionals, but the support of the press. I have with me a copy of the South Yorkshire Times—an excellent newspaper that covers my constituency and that of the Minister. The headline in the October 27 edition reads, “Backing for Bill to raise smoking age”. The subsequent article begins:
“The South Yorkshire Times today formally backed Mexborough and Barnsley East MP Jeff Ennis in his bid to raise the minimum smoking age to 18.”
The paper also went so far as to place petitions for signature, not only in their head offices, but in the shops in my constituency and that of the Minister. In the not-too-distant future, I hope to present that petition on the Floor of the House. In that context, I single out the campaigning journalist from the South Yorkshire Times, Mr. Lee Siggs. For the benefit of Hansard, that is spelled “Siggs” not “Cigs”. Such things could not be made up.
In conclusion, I thank the Minister for the support that she has given me since she took on her ministerial job. I had a number of formal and informal meetings with her on this issue, long before we reached the debate on Second Reading.

Andrew Lansley: The hon. Gentleman has made a powerful case in support of the principle underlying new clauses 2 and 7. However, I am not yet clear about his position. Does he support new clause 2, which would put into primary legislation the opportunity for Ministers to implement such a measure in the light of consultation, or does he wish us to proceed with new clause 7, on the basis that there is good evidence and  substantial public support for such a measure and not, as far as I am aware, any countervailing evidence or public opposition that should inhibit us from doing so?

Jeff Ennis: Like the rest of the Committee, I am waiting to hear the Minister’s response to my contribution and that of the right hon. Member for North-West Hampshire, because both new clauses are worthy of consideration by the Committee.
I certainly welcome the public consultation process that the Minister announced, and I am sure that it is not an attempt to kick the issue into the long grass, as some people might suggest, or a cynical ploy. However, I would like assurances about the process.  The announcement said that the consultation would be next year, but how long does the Minister expect it to last? When does she expect it to start? Will it be at the beginning of the year or next November or December? If the measure enjoys popular support, as I am sure that it will once we have been out to consultation, when and how does she envisage it becoming law? Will it be brought in with the Bill or in some other legal framework?
Debate adjourned.—[Gillian Merron.]
Adjourned accordingly at two minutes to Seven o’clock till Thursday 15 December at Nine o’clock.